(September 28, 2001) 2001 (TLS)125703

2001-AD (Del)-7-163 :: 2002-AIR (Del)-0-98

PREM SAGAR KHANNA Vs. Ravi Khanna

A. K. SIKRI

( 1 ) THE plaintiff has filed the instant suit for declaration, partition and permanent injunction. Para-19 of the plaint contains the prayer clause which reads as under

"a. a decree for declaration be passed in favour of the plaintiff and against the defendants holding that the oral family arrangement reduced into writing vide family arrangement dated 2/8/1986 is final and binding on the parties in all respects. In the alternative it is prayed that a preliminary decree for partition be passed in favour of the plaintiff and against the defendants 1 to 5 in relation to the property bearing No. 64, Golf Link, new Delhi, A-140, Niti Bagh, New Delhi and 27 acres of agricultural land in village Mohd Amin Khan, Tehsil Najibabad, district Bijnor, UP and declare the share of each of the parties to the said properties. b. Thereafter this Hon ble Court may be pleased to appoint a Local Commissioner to suggest the mode of partition. c. pass a final decree for partition in relation to the above properties and put the plaintiff in possession of the portion which comes to his share in respect of the aforesaid properties. d. a decree for permanent injunction be passed in favour of the plaintiff and against the defendants 1 and 2 restraining the said defendants from making any addition or alteration or structural change in the property bearing no. 64 Golf Link, New Delhi. e. Cost of the suit be also awarded. "

( 2 ) A perusal of the aforesaid prayers would show that the plaintiff is seeking a declaration that family arrangement dated 2/8/1986 is final and binding on the parties in all respects. It is only if it is decided that the aforesaid family arrangement dated 2/8/1986 is not final and binding, the plaintiff is seeking, in the alternative, partition of the suit property mentioned in prayer clause a above.

( 3 ) IT is an admitted case that family arrangement dated 2/8/1986 was entered into between the parties recording that the parties had partitioned the suit properties. In para~6 of the plaint the plaintiff has even alleged that the said family arrangement was acted upon by the parties. It may be mentioned that there are three sets of defendants. One is agreeing with the plaintiff by contending that the aforesaid family arrangement is final and binding on the parties whereas other two sets of the defendants are challenging the aforesaid family arrangement.

( 4 ) BE that as it may, IA. 1513/96 is filed by defendant No. 1 which is an application under Section 8 of the Arbitration and Conciliation act,1996 (hereinafter to be referred as new Act ). In this application which was filed by the defendant No. 1, immediately after receiving the summons in the suit and before filing the written statement, it is stated by the defendant No. 1 that Clause-7 of the family arraignment contains an arbitration agreement and, therefore, disputes between the parties relating to their respective rights in the properties covered by the family arrangement are to be resolved by means of arbitration and the present suit is not competent. Clause-7 of the family arrangement provides as follows :

"7. Any doubt, difference or dispute arising regarding this family arrangement or regarding any property or right referred to hereinabove, shall be referred to the sole arbitration of Shri k. K. Jain, Senior Advocate, new delhi. "

( 5 ) THIS application is resisted by the plaintiff who is represented by Mr. V. K. Makhija, Sr. Advocate and three sets of defendants represented by mr. V. K. Srivastava, Advocate and Mr. P. C. Khanna, sr. Advocate.

( 6 ) SINCE apparently the disputes and differences which are subject matter of the present suit are covered by the aforesaid arbitration clause, it would be appropriate to examine the objections of the non-applicants.

( 7 ) THE main objection of Mr. V. K. Makhija, learned senior counsel appeari